Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.

(This two-part series examines legislation in Congress that would reform the infamous Mining Law of 1872. Part 1 focused on how mining on public lands should be administered in the twenty-first century. Part 2 focuses on pending legislation the conservation areas in which mining should be permanently banned.)

Fig. 1. Endemic to Oregon, Kalmiopsis leachiana is often found on serpentine (ultramafic) soils in southwest Oregon. Such soils contain nickel, cobalt and other metals, that are either the basis of staked mining claims or are lands that could be so staked. Source: George Wuerthner (first appeared in Oregon Wild: Endangered Forest Wilderness).

While the how, when, where, and why of mining on federal public lands is important (see Part 1), at least as important is where not to mine on federal public lands. These include places where the public’s interest in the conservation of natural, historical, and cultural values outweighs the value of any minerals that might be had, places that have been reserved for the benefit of this and future generations rather than for the benefit of today’s corporation.

The conservation status of certain federal public lands has been elevated either congressionally or administratively. Unfortunately, such an elevation does not always come with a ban on the hardrock mining that could destroy the very values for which the conservation area was established. That oversight can be remedied in legislation we can hope will be introduced in the current Congress.

The Disconnect Between Conservation Designations and Protection from Mining

Due to the way Congress provided for public land withdrawals from mining before and after the enactment of the Federal Land Policy and Management Act of 1976 (FLPMA), countless administrative (and some congressional) conservation designations are open to hardrock mining under the Mining Law of 1872 as amended. Under FLPMA, a mineral withdrawal can last a maximum of twenty years and can be approved only by the secretary of the interior or an assistant secretary who has been Senate-confirmed. Such withdrawals can be big bureaucratic lifts and can be complicated if the administration is resistant to conservation. While the renewal of many is routine, having to periodically renew them is an unnecessary administrative burden.

For administrative conservation area designations on Bureau of Land Management (BLM) holdings, such designations are established during the land use planning process specified in Sec. 202 of FLPMA. The deciding officials are generally state directors or lower-level line officers. Under Section 204 of FLPMA, mineral withdrawals are the responsibility of Senate-confirmed officials in the Office of the Secretary of the Interior. The processes are independent, unrelated, and disconnected. The practical effect is that the overwhelming number of mineral withdrawals called for by BLM line officers in resource management plans for administrative conservation areas are never implemented by political appointees at the highest levels of the Interior Department—during good and bad administrations alike.

For Forest Service special conservation area designations, it’s even worse. The lower-level Forest Service line officers must ask their BLM counterparts to initiate all withdrawal requests, as FLPMA gives jurisdiction over mining on National Forest System lands to the BLM. BLM bureaucrats are not generally motivated to honor such Forest Service requests.

If the appropriate land management official determines that the federal land is worthy of conservation for the benefit of this and future generations, mining of such areas is inappropriate and should be banned concurrent with the establishment of the conservation area.

A Mining Law for 2072

In the last, 115th Congress (2017–2018), Representative Raúl Grijalva (D-3rd-AZ) introduced his Hardrock Leasing and Reclamation Act (H.R.5753) with twenty-one cosponsors, including Representative Earl Blumenauer (D-3rd-OR). Representative Peter DeFazio (D-4th-OR) was chief sponsor of a hardrock mining reform bill in 2014 but is not even a cosponsor of the Grijalva bill. Senator Tom Udall (D-NM) introduced his Hardrock Mining and Reclamation Act (S.1833) with four cosponsors, including Senator Ron Wyden (D-OR).

In general, the House bill is more conservation oriented, public health and safety conscious, and taxpayer friendly than the Senate bill. Senator Wyden should not again cosponsor the Udall bill in the new, 116th Congress (2019–2020) but rather should introduce companion legislation to Grijalva’s House bill.

Leasing versus claiming.The Grijalva bill would reform public lands hardrock mining by eliminating claims by location and going to a leasing system, while the Udall bill generally preserves the location scheme of 1872.

Royalties. The Grijalva bill would require a royalty be paid the federal government of “no less than 12.5 percent of the gross value of production,” while the Udall bill would order the secretary of the interior to set the rate, but at “not less than 2 percent, and not more than 5 percent, of the gross income from mining for production.”

Enforcement. The Grijalva bill requires enforcement of new protective standards and backs the requirement up with a citizen-suit provision, which would allow citizens to enforce the law when the government fails to do so. The Udall bill is generally silent on the matter of enforcement.

Environmental protection going forward. The Grijalva bill would establish minimum environmental protection standards, while the Udall bill is generally silent on the matter of environmental protection.

The reclamation backlog. Both bills would establish a special reclamation fund to clean up past mine disasters. Both would be funded by various fees, royalties, and donations. Since the Grijalva bill has a significant royalty requirement, much more money would be available to address the reclamation backlog under the House version.

Public lands closed to hardrock mining. The next section will address in detail how the bills would or would not place both congressional and administrative conservation areas off-limits to hardrock mining.

In conclusion, as drafted the Udall bill in the Senate would be equivalent to a Mining Law of 1972—a step forward, but an inadequate step. As drafted, the Grijalva bill in the House of Representatives would be the equivalent of a Mining Law of 2022. With some judicious amendments, it could be a mining law for 2072. The Grijalva bill would go far toward making mining on public lands more a privilege than a right, with miners having to pay their fair share and to clean up their messes. The Udall bill, not so much.

Conservation Areas That Should Be Closed to Mining

In relative terms, as far as the protection of important congressional and administrative conservation areas on federal public lands, the Grijalva bill leaves the Udall bill in the dust. In absolute terms, the Grijalva bill needs some work. Of particular interest to public lands conservationists is which areas will be off-limits to mining, whether by lease or claim. The Grijalva bill places certain areas off-limits and directs the Forest Service and the BLM to consider making other areas off-limits. The Udall bill leaves it all to the agencies as to which lands would be off-limits to hardrock mining. The potential for agency abuse of discretion is unlimited in the Udall bill.

The Grijalva bill would statutorily ban hardrock mining in the usual suspects—the national wilderness preservation, wild and scenic rivers, wildlife refuge, and national park systems, most of which are off-limits to hardrock mining now. However, a whole lot of other congressional conservation areas are not statutorily protected from hardrock mining in the Grijalva bill, including

• several congressional conservation areas in the National Forest System, including those designated as national scenic research areas, national scenic areas, national game refuges and wildlife preserves, national volcanic monuments, national historic areas, national protection areas, special management areas, national botanical areas, recreation management areas, and scenic recreation areas;

• several congressional conservation areas on lands administered by the BLM, including Steens Mountain Cooperative Management and Protection Area, Headwaters Forest Reserve, Yaquina Head Outstanding Natural Area, and public land within the California Desert Conservation Area administered by the BLM for conservation purposes; and

• most units of the National Park System that are neither a national park nor a national monument, including units with the names of: forest park (1), heritage trail route (1), international park (1), mountain park (1), national battlefield park (4), national capital park (numerous), national historic park (49), national historic trail (17), national memorial (29), national monument (78), national parkway (10), national recreation area (18), national river (5), national scenic and recreational river (2), national scenic riverway (2), national scientific reserve (1), heritage center (1), international historic site (1), international peace garden (1), national battlefield (11), national battlefield site (1), national heritage area (49), national historic site (78), and national lakeshore (4).

In addition, vast amounts of administrative conservation area acreage would still be statutorily open to mining. Some might receive protection from hardrock mining if the Forest Service or BLM so decide, but again, it’s that unlimited potential abuse of discretion thing. Vulnerable administrative conservation areas include countless administrative conservation areas (such as outstanding natural areas, national natural landmarks, research natural areas, and special [scenic, geologic, botanic, zoologic, paelontologic, historical, recreational] areas; and miscellaneous conservation designations (for example, municipal watersheds, critical habitat, lands with wilderness characteristics).

The hope is that during the coming House consideration (Grijalva intends to reintroduce his bill) and eventual Senate consideration, the defects in both administrative and congressional conservation area protection against hardrock mining can be remedied.

Fig. 2. Hardrock mining in research natural areas, such as this one (now named the Thornton T. Munger RNA) on the Gifford Pinchot National Forest, Washington, needs to be statutorily banned. (Perhaps one of the research projects is how well cursive writing works carved into outdoor interpretive signs.) Source: USDA Forest Service.

A ~1,000-word weekly exposition on some aspect of federal or state public lands in the United States. Some blog posts goes rather deep and serve as a useful (I hope) backgrounders on particular public land areas, matters or issues. Other weeks, you’ll find a topical piece addressing a public lands controversy of the moment. This blog not only defends, but also extols, public lands.

Andy Kerr of The Larch Company (www.andykerr.net) splits his time between Ashland, OR and Washington, DC. He has been significantly involved in the enactment of more than 25 pieces of federal and state legislation and in copious litigation pertaining to public lands. Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.